Public and Subsidized Housing: When I Do Not Pay the Rent

6104EN - If you are a tenant who lives in public housing or a federally subsidized apartment complex, you have greater protection against eviction than other tenants. But these rights are limited. If you do not pay your rent, in most cases the landlord can evict you. This publication briefly explains how to avoid eviction for nonpayment of rent.

Should I read this?

Yes, if you are a tenant who lives in public housing or a federally subsidized apartment complex. You have greater protection against eviction than other tenants. But these rights are limited. If you do not pay your rent, in most cases the landlord can evict you. This publication briefly explains how to avoid eviction for nonpayment of rent.

What if I cannot pay my rent on time?

Tell the Housing Authority or your landlord right away. Try to do so before the rent is due and your landlord has served you with an eviction notice.

The Housing Authority or landlord may be able to adjust your rent if you can show:

you lost a job OR

your income has gone down since the Housing Authority/landlord last reviewed your income

Your landlord might also agree to make other payment arrangements. In that case:

Put the arrangements in writing.

Make sure you understand them.

*Do not agree to payments you cannot afford!

Your landlord may accept partial payment or late payment. (S/he does not have to.) Try to pay whatever you can if the landlord will accept it.

If your landlord accepts a payment, get a receipt. If your landlord refuses payment, set aside whatever funds you can to settle the case later.

*Do not spend your rent money except to move!

If your landlord will not accept partial payment, do what you can to pay in full as soon as possible. Contact the Department of Social and Health Services (DSHS) right away to apply for financial assistance. Also try relatives, friends, and local agencies (example: the Red Cross) for help.

*Your landlord is one of the few creditors who can harm you if you do not pay your bills. So generally you should pay your landlord before anyone else.

What can my landlord do if I do not pay my rent?

Your landlord may evict you for nonpayment of rent. S/he must bring a lawsuit to do so.

*Your landlord cannot:

Lawfully remove you from your apartment without a court order.

Lock you out of your place or shut off your utilities for not paying rent.

Take or keep your personal property because you did not pay your rent.

Will my landlord give me notice before starting an eviction lawsuit?

The landlord must serve you with a written notice to pay rent or move. In most cases, s/he only has to give you three days' notice and a chance to pay the rent. The notice may have to give other information.

Read your lease. Make sure the notice your landlord gave you has all the information your lease says must be in it. If not, you may be able to raise this as a defense and get more time to pay your rent.

The notice does not have to be notarized or delivered by the sheriff. It should be given to you personally at your home. If you are not home, it may be left with someone else there, as long as the landlord also mails you a second copy. If no one is home, your landlord must leave a copy at your home and mail you a copy. Your lease may have other service requirements.

If you pay your rent in full within three days of getting this notice, your landlord may not file a lawsuit to evict you for nonpayment of rent. Where possible, try to pay your rent in front of a witness who can testify in court if your landlord refuses payment.

Get a receipt for any payment your landlord accepts. Try to also get a written agreement not to evict you.

*In a few cases, a landlord may be able to accept overdue rent and still evict you. Your landlord should tell you s/he plans to do this.

Read the eviction notice carefully. In some cases your landlord might have to meet with you to discuss the notice. You may also have the right to a grievance hearing. If so, take this opportunity. Try to settle the dispute.

What if I do not pay my rent within three days after getting a pay or vacate notice?

Your landlord may start a lawsuit to evict you by serving you with a Summons and Complaint for "unlawful detainer".

*Your landlord can start the lawsuit by serving these papers on you without filing them with the court.

A landlord may delay filing an eviction lawsuit in the hope that you will voluntarily move. Try to pay your rent. Do not move without first discussing your rights with a lawyer.

*If you move, you will lose your federal housing assistance!

Once served with a Summons and Complaint for unlawful detainer, you must act immediately to avoid eviction. Our Eviction and Your Defense publication explains and has the forms you need.

At the least, you must serve a notice of appearance or answer on the landlord (or his/her lawyer) within the time period stated in the Summons. You may also have to:

Pay your rent into the court registry

File a sworn statement or declaration denying you owe rent

Go to a hearing

Read the Summons and Complaint and any other documents served on you very carefully. Follow their instructions. Otherwise you may be evicted without a court hearing.

What defenses can I raise in court?

*It is very hard to successfully fight an unlawful detainer action for nonpayment of rent. The law says you must pay your rent no matter your financial or personal circumstances. You can be evicted for nonpayment of rent even if:

You have no money

You have children

You are disabled

To win in court, you must ordinarily show you do not owe the rent because:

You paid the rent OR

The rent your landlord is demanding is not actually due

Your landlord waived (gave up) the right to evict you for nonpayment of rent, or should be "estopped" (prevented) from doing so

Here are briefly some arguments or defenses:

Payment or Tender of Rent - if you paid (or tried to pay) rent within three days of getting the eviction notice. You must be able to prove you paid or "tendered" (tried to pay) timely. You probably need a receipt or witness.

Improper Calculation of Rent. Check your landlord's rent calculations. Make sure they did not overstate your income or understate your deductions in determining your rent.

Breach of Warranty of Habitability. In a very few cases, you may be able to argue you do not owe rent because your landlord has not maintained your rental unit and breached the "implied warranty of habitability." See, Foisy v. Wyman, 83 Wn.2d 22, 515 P.2d 160 (1973). Washington's Residential Landlord-Tenant Act (RLTA), RCW 59.18, also might allow you to make repairs and then deduct the repair costs from your rent. Do not withhold rent without first talking to a lawyer.

Procedural Defenses. You might be able to defend against an unlawful detainer action by arguing that the landlord did not follow the right legal procedure. Example: Your landlord did not serve a proper notice on you before starting the case.

Waiver or Estoppel. As a last resort, you might be able to argue the housing authority/landlord lost the right to expect timely rent payment by letting you pay late repeatedly or making other payment arrangements with you. You may also be able to argue that as a "matter of equity" (fairness) you should have a reasonable chance to pay your rent late and avoid eviction. This will usually only work when you can go back to paying your rent in full and pay the back rent in a reasonable period of time. You may also have to pay your landlord's court costs and attorney's fees.

I have been served with a Summons and Complaint for unlawful detainer. Now what?

Many cases settle. If you can pay your rent reasonably soon, try to settle the case by signing a written settlement agreement with your landlord.

Most landlords will insist the settlement agreement say they can evict you if you do not make the agreed-upon payments. Your landlord may also ask you to pay some of his/ her court costs and attorney's fees. If you can do this, this is still better than losing your federal housing subsidy.

*Do not enter into a settlement agreement that you do not understand or cannot obey. A settlement agreement is a binding contract. The court will usually enforce it no matter the hardship it causes you.

What if I lose the lawsuit?

Your options are very limited. You can try to:

Reinstate Your Tenancy. The Residential Landlord-Tenant Act, RCW 59.18.410, gives you a way to reinstate or save your tenancy after judgment in an unlawful detainer action based on nonpayment of rent. You must pay the judgment and all court costs into the court within five days of entry of the judgment. You can argue that "court costs" do not include attorney's fees under RCW 59.18.410.

Move for Revision. If a court commissioner entered the judgment, you can file a motion for revision and ask a superior court judge to set the decision aside. This works in a very few cases.

File an Appeal. Once the judgment is final, you can file an appeal and ask the court to stay (stop) execution of the writ of restitution while the appeal is underway. You will find it hard to appeal without a lawyer. Very few cases are appealed success­fully.

How about filing bankruptcy?

As a last resort, you may be able to file a bankruptcy to delay or prevent your eviction. There are several types of bankruptcies, including Chapters 7 and 13. Filing any bankruptcy will temporarily delay ("stay") an evic­tion.
You might have to file a Chapter 13 case and pay the back rent through regular monthly payments to keep an eviction from ever happening. You will have to show that you can

start paying your rent in full again AND

make large enough payments towards the back rent to cure your default within a reasonable time

The sooner you can cure your default, the more likely a court will approve your Chapter 13 Plan. There are downsides to filing a bankruptcy. But it may be better than losing your federal housing assistance.

If you cannot work out a repayment agreement with your landlord, talk to a lawyer immediately about filing a Chapter 13 bankruptcy. Try to file your bankruptcy before your landlord gets a judgment against you. At the least, you must file your Chapter 13 case within five days of the entry of any judgment.

Once you file a bankruptcy, your landlord cannot do more to evict you without first filing a motion for relief from the automatic stay. A bankruptcy court should not lift the stay as long as your Chapter 13 Plan can be confirmed and the landlord suffers no financial loss.

Beware: Laws Change

This publication provides general information concerning your rights and responsibilities. It is not a substitute for specific legal advice. The information in this publication is current as of August 2015. Laws change. Talk with a lawyer. Make sure the information in this publication is current.

King County: Call 211 for information and referral to an appropriate legal services provider Monday through Friday from 8:00 am – 6:00 pm. You may also call (206) 461-3200, or the toll-free number, 1-877-211-WASH (9274). You can also get information on legal service providers in King County through 211's website at www.resourcehouse.com/win211/.

Persons 60 and Over: Persons 60 or over may call CLEAR*Sr at 1-888-387-7111, regardless of income.

Callers who are deaf and hard of hearing can call 1-800-833-6384 or 711 to get a free relay operator. They will then connect you with 211 or CLEAR.

6104EN

This publication provides general information concerning your rights and responsibilities. It is not intended as a substitute for specific legal advice.
This information is current as of August 2015.